Citation Nr: 0622917
Decision Date: 08/01/06 Archive Date: 08/15/06
DOCKET NO. 04-43 905 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
A. J. Kramer, Law Clerk
INTRODUCTION
The appellant had active military service from November 1962
to August 1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from May 2004 rating decision in which the
RO denied service connection for bilateral hearing loss. The
appellant filed a notice of disagreement (NOD) in September
2004 and the RO issued a Statement of the Case (SOC) in
October 2004. The appellant filed a VA Form 9 (Appeal to the
Board of Veterans' Appeals) in December 2004.
In August 2005, the appellant and his wife testified during a
hearing before the undersigned Veterans Law Judge at the RO.
A transcript of that hearing is of record.
FINDINGS OF FACT
1. All notification and development action needed to fully
adjudicate the claim on appeal has been accomplished.
2. While in service, the appellant was diagnosed with otitis
media of the right ear and also likely experienced
significant noise exposure as a result of his work as a radio
operator.
3. The appellant has a current bilateral hearing loss to an
extent recognized as a disability for VA purposes.
4. The most probative opinion on the question of medical
nexus between current hearing loss disability and service
indicates that much of the veteran's hearing loss resulted
from military noise exposure.
CONCLUSION OF LAW
With resolution of all reasonable doubt in the appellant's
favor, the criteria for service connection for bilateral
hearing loss are met. 38 U.S.C.A. §§ 11131, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
At the outset the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107
(West 2002). To implement the provisions of the law, VA
promulgated regulations codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2005). The VCAA and its
implementing regulations essentially include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as a duty to notify a claimant
what evidence will be obtained by whom. 38 U.S.C.A. § 5103A
(West 2002); 38 C.F.R. § 3.159(b). In addition, they define
the obligation of VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159(c).
Considering the record in light of the above, and in view of
the Board's favorable disposition of the claim on appeal, the
Board finds that all notification and development action
needed to render a fair decision on this claim has been
accomplished.
II. Analysis
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or from aggravation of a pre-existing
injury suffered or disease contracted in the line of duty.
See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303
(2005). Service connection may be granted for a disability
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disability is
due to disease or injury that was incurred or aggravated in
service. 38 C.F.R. § 3.303(d) (2005).
For purposes of applying the laws administered by VA,
impaired hearing will be recognized as a disability when the
auditory threshold in any of the frequencies 500, 1000, 3000,
4000, Hertz is 40 decibels or greater; or when the auditory
thresholds for at least three of the frequencies 500, 1000,
2000, 3000 and 4000 Hertz are 26 decibels or greater; or when
speech recognition scores using the Maryland CNC test are
less than 94 percent. 38 C.F.R. § 3.385 (2005).
The appellant's service records show that during active duty,
his military occupational specialties included airborne radio
operator and radio operations supervisor, which he has
indicated resulted in significant noise exposure. The
veteran also has testified that he experienced to acoustic
trauma while flying missions in Vietnam.]
The report of the appellant's entrance examination in 1962
reflects normal hearing. Service medical records show that
the appellant was diagnosed with otitis media of the right
ear in December 1967 which led to a medical recommendation
rendering him incapable of flying for portions of December
1967 and January 1968. These records do not reflect an
explicit diagnosis of hearing loss during the appellant's
service. However, the appellant's annual flying examination
in March 1969 and discharge medical examination in August
1974 appear to show mild decrease in hearing acuity.
The Board notes that the absence of in-service evidence of
hearing loss is not fatal to a claim for service connection
for such condition. See Ledford v. Derwinski, 3 Vet. App.
87, 89 (1992). Evidence of a current hearing loss disability
(i.e., one meeting the requirements of section 3.385, as
noted above) and a medically sound basis for attributing such
disability to service may serve as a basis for a grant of
service connection for hearing loss. See Hensley v. Brown, 5
Vet. App. 155, 159 (1993).
Post service records in this case include a May 2003 private
audiological evaluation report and a June 2003 physician's
statement indicating that the appellant has been diagnosed
with bilateral, moderate-to-severe, near flat line
sensorineural hearing loss (SNHL). The report of a December
2003 VA audiological evaluation reflects a diagnosis of mild
sloping to moderately severe SNHL, bilaterally. Both reports
include audiometry test results indicating that the appellant
had auditory thresholds of 40 decibels or greater in the
frequencies 3000, 4000 and 8000 Hertz, as well as he
audiometric evaluations showed that the appellant had
auditory thresholds greater than 26 decibels at three or more
of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz.
Thus, the record clearly shows that the appellant currently
has hearing loss to an extent recognized as a disability for
VA purposes.
As noted above, the appellant's service medical records
include no specific evidence of any significant noise
exposure or participation in a hearing conservation program.
However, service records document that the appellant worked
as an airborne radio operator and the appellant has testified
that this work involved prolonged exposure to airplane noise
and explosions amplified by audio activated sensors. The
appellant also testified that he ruptured an ear drum in
service during a rapid descent. This is consistent with the
December 1967 diagnosis of otitis media noted in the service
medical records. As such work likely involved noise
exposure, the Board accepts the appellant's assertions of in-
service noise exposure as credible and consistent with the
circumstances of his military service.
Accordingly, the remaining question is whether the
appellant's current disability is medically related to his
military service-specifically, the claimed in-service noise
exposure. The record includes a June 2003 letter in which
the appellant's private physician opined that much of the
appellant's bilateral hearing loss was related to his noise
exposure in the military. Conversely a December 2003 VA
audiological evaluation report states that the appellant's
hearing loss is less than likely due to military service. In
this case, the Board finds that the June 2003 opinion by the
private physician on the question of medical etiology of
hearing loss is more probative than the opinion of an
audiologist without medical credentials.
As such, the Board finds that the June 2003 private
physician's opinion constitutes the most probative
(persuasive) evidence on the question of medical etiology of
bilateral hearing loss. See Hayes v. Brown, 5 Vet. App. 60,
69-70 (1993) ("It is the responsibility of the BVA to assess
the credibility and weight to be given the evidence") (citing
Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). While
the examiner opined only that "much" of the veteran's
hearing loss was related to in-service noise exposure, and
acknowledged the possibility that heredity may be a factor in
the veteran's hearing, the opinion, as a whole, tends to
support the claim for service connection.
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding service
origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. By
reasonable doubt is meant one that exists because an
approximate balance of positive and negative evidence which
does satisfactorily prove or disprove the claim. It is a
substantial doubt and one within the range of probability as
distinguished from pure speculation or remote possibility.
38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
In light of the foregoing, and resolving reasonable doubt in
the appellant's favor on the questions of in-service injury
(noise exposure) and medical nexus, the Board finds that
service connection for bilateral hearing loss is warranted.
ORDER
Service connection for bilateral hearing loss is granted.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs